Westminster Watch

As 2018 draws to a close, Mark Hatcher reflects on Brexit’s heavy toll, a tumultuous year at Westminster and a glimmer of hope for the criminal justice system

2018 ends in turbulence and turmoil as Brexit, which has dominated the political agenda, exacts a heavy price on parliamentarians and brought gridlock to Parliament. No narrative that the Conservatives could have constructed, following Theresa May’s disastrous general election in 2017, whether to do with tackling ‘burning injustices’ or ‘building a Britain fit for the future’, could really have competed with the awesome challenge of detaching ourselves from an international treaty organisation with a complicated rule book and limited scope for manoeuvre, and dismantling 45 years of economic and political arrangements with the rest of the EU.

With a tiny working majority of 12 the Tories have only managed to govern, in a manner of speaking, with the support of the DUP under a ‘Confidence and Supply’ agreement which has become increasingly threadbare. As the government has struggled to govern, Labour has struggled to oppose. The minority parties on the other hand seem to have attracted more than their usual share of parliamentary airtime. Whatever happened to ‘strong and stable government’? The country, manifestly disunited, appeared at times to be hurtling towards a constitutional crisis and crashing out of the EU without a deal.

Matters came to a head when the Shadow Brexit Secretary, Keir Starmer moved his motion that Ministers had acted in contempt of Parliament for their failure to publish the full and final legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the Political Declaration. The motion was signed by Starmer’s counterparts in the Scottish National Party, the Lib Dems, the DUP, Plaid Cymru and the Green Party. There was something for everyone, including Conservative backbenchers who piled in, with Labour, to a full scale debate about parliamentary sovereignty and the government’s duty to obey motions of Parliament.

The constitutional convention that the Attorney General’s legal advice should remain confidential was clear from Erskine May and the Ministerial Code. But the government chose not to vote against the Opposition’s earlier ‘Humble Address’ motion of 13 November calling for the Attorney’s advice to be disclosed because they had taken a political decision not to do so. They knew they would be defeated. Indeed, the government whips asked Tory members not to vote at all.

The motion of a Humble Address was undoubtedly a very blunt instrument to use but it is nonetheless an extremely important weapon of the House and binding in terms of parliamentary procedure. Sometimes it is the duty of Parliament to tell the government to do things. If the government loses the vote, they think that Parliament is wrong but they should nonetheless comply.

Previously the ‘usual channels’ would have sorted this out in the tea rooms and behind the Speaker’s chair but as the Father of the House (and former Lord Chancellor), Ken Clarke observed, ‘no one knows where we are going in politics, who will be in government and who will be in opposition for very long’. What mattered was that Parliament was not weakened any further and that the ability of governments of whatever party to rule in the national interest was not undermined.

Despite concerns that Parliament has ceded too much power to the Executive over the years, here was Parliament acting as the High Court of Parliament, regulating its affairs and maintaining its privileges – it cannot be impugned in any other court – under the Bill of Rights of 1689. Admittedly, as Dominic Grieve pointed out, Parliament’s powers are archaic and would probably fall foul of most modern principles of justice. This state of affairs has prevailed for decades because successive governments have been complacent, knowing that in reality the teeth are not present for the House of Commons to be able to assert its authority.

However, Brexit has shown how Parliament can exert an important, moderating influence on the conduct and output of government. The centrepiece of the Conservatives’ legislative programme for the 2017-19 session was the EU (Withdrawal) Bill, repealing the 1972 European Communities Act, converting EU law into UK law and containing a huge raft of temporary powers for Parliament to make secondary legislation. Its Lords’ committee stage (occupying 115 hours of debate over 11 days), supported by the output of six sub-committees of the Lords EU Select Committee as well as numerous other select committees, resulted in a measure that was very different from the one introduced to the Commons by former Brexit Secretary, David Davis, as a result of 192 amendments to the Bill and government defeats in 15 votes.

With Westminster’s huge focus on Brexit, the limited time to pursue a domestic agenda might be thought to have meant the Bar’s interests on this front would have suffered. In fact over the past year the issue of funding the justice system, and criminal justice in particular, has received significantly more attention at Westminster than in previous years, in both Houses, following sustained lobbying by the Bar Council and the Criminal Bar Association and aided by the distribution to every MP of a copy of The Secret Barrister’s book.

The concerns which the Bar had about the Advocates’ Graduated Fee Scheme (AGFS) instrument laid in February which came into effect on 1 April, were shared that month by the Lords Secondary Legislation Standing Committee which reported the matter to the House. The consultation in August on a proposed allocation of additional expenditure on AGFS followed a Commons debate in June on an Early Day Motion signed by 90 MPs, a Commons Justice Committee inquiry into criminal legal aid in July, a Commons ‘Estimates Day’ debate on the Ministry of Justice’s spending in the same month and a Westminster Hall debate in September on the future of legal aid initiated by the chair of the All Party Parliamentary Group on Legal Aid, Karen Buck.

The need to fund the justice system properly was reinforced for MPs and Peers during the course of Justice Week at meetings of the APPGs for the Rule of Law and Public Legal Education and the Lords Science and Technology Committee considering forensic science in the criminal justice system and it led to informed exchanges about justice funding in the Commons in the course of the debates on the Chancellor’s Budget in November. The fundamental importance of an independent, strong and diverse legal profession as a pillar of the justice system was impressed on the Justice Committee by the Lord Chief Justice in presenting his 2018 report to Parliament in November.

It was therefore reassuring to hear the Lord Chancellor announce at the Annual Bar and Young Bar Conference, having acknowledged the ‘enormously important’ role criminal defence advocates carry out in publicly funded work in the crown court, that the government would bring an additional £23m to funding the AGFS scheme, mostly targeted at cases conducted by junior advocates and that a proposed increase of 1% to all fees would be brought forward to come into effect alongside the planned introduction of the new scheme, on 31 December 2018, rather than from April 2019.

The government also recognises that there is scope to further improve the way criminal advocates are paid. To that end they intend to launch a broader review of criminal legal aid schemes early in the new year. This will take into account the Justice Committee’s reports on criminal legal aid and disclosure in criminal cases, and broader changes across the criminal justice system. The scale of this task, which will involve new data and evidence, should not be underestimated. Plainly the government and the legal professions will need to work together if this ambition is to lead to a sustainable outcome on the basis of which barristers and solicitors can plan for the future.

Against the backdrop of all the political and economic uncertainty created by Brexit, and the difficult funding challenges facing departments in the forthcoming spending review, the AGFS result, and what may develop in response to the Bar’s wider campaign for justice, gives some cause for hope in 2019.

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.

Westminster Watch

2018 ends in turbulence and turmoil as Brexit, which has dominated the political agenda, exacts a heavy price on parliamentarians and brought gridlock to Parliament. No narrative that the Conservatives could have constructed, following Theresa May’s disastrous general election in 2017, whether to do with tackling ‘burning injustices’ or ‘building a Britain fit for the future’, could really have competed with the awesome challenge of detaching ourselves from an international treaty organisation with a complicated rule book and limited scope for manoeuvre, and dismantling 45 years of economic and political arrangements with the rest of the EU.

With a tiny working majority of 12 the Tories have only managed to govern, in a manner of speaking, with the support of the DUP under a ‘Confidence and Supply’ agreement which has become increasingly threadbare. As the government has struggled to govern, Labour has struggled to oppose. The minority parties on the other hand seem to have attracted more than their usual share of parliamentary airtime. Whatever happened to ‘strong and stable government’? The country, manifestly disunited, appeared at times to be hurtling towards a constitutional crisis and crashing out of the EU without a deal.

Matters came to a head when the Shadow Brexit Secretary, Keir Starmer moved his motion that Ministers had acted in contempt of Parliament for their failure to publish the full and final legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the Political Declaration. The motion was signed by Starmer’s counterparts in the Scottish National Party, the Lib Dems, the DUP, Plaid Cymru and the Green Party. There was something for everyone, including Conservative backbenchers who piled in, with Labour, to a full scale debate about parliamentary sovereignty and the government’s duty to obey motions of Parliament.

The constitutional convention that the Attorney General’s legal advice should remain confidential was clear from Erskine May and the Ministerial Code. But the government chose not to vote against the Opposition’s earlier ‘Humble Address’ motion of 13 November calling for the Attorney’s advice to be disclosed because they had taken a political decision not to do so. They knew they would be defeated. Indeed, the government whips asked Tory members not to vote at all.

The motion of a Humble Address was undoubtedly a very blunt instrument to use but it is nonetheless an extremely important weapon of the House and binding in terms of parliamentary procedure. Sometimes it is the duty of Parliament to tell the government to do things. If the government loses the vote, they think that Parliament is wrong but they should nonetheless comply.

Previously the ‘usual channels’ would have sorted this out in the tea rooms and behind the Speaker’s chair but as the Father of the House (and former Lord Chancellor), Ken Clarke observed, ‘no one knows where we are going in politics, who will be in government and who will be in opposition for very long’. What mattered was that Parliament was not weakened any further and that the ability of governments of whatever party to rule in the national interest was not undermined.

Despite concerns that Parliament has ceded too much power to the Executive over the years, here was Parliament acting as the High Court of Parliament, regulating its affairs and maintaining its privileges – it cannot be impugned in any other court – under the Bill of Rights of 1689. Admittedly, as Dominic Grieve pointed out, Parliament’s powers are archaic and would probably fall foul of most modern principles of justice. This state of affairs has prevailed for decades because successive governments have been complacent, knowing that in reality the teeth are not present for the House of Commons to be able to assert its authority.

However, Brexit has shown how Parliament can exert an important, moderating influence on the conduct and output of government. The centrepiece of the Conservatives’ legislative programme for the 2017-19 session was the EU (Withdrawal) Bill, repealing the 1972 European Communities Act, converting EU law into UK law and containing a huge raft of temporary powers for Parliament to make secondary legislation. Its Lords’ committee stage (occupying 115 hours of debate over 11 days), supported by the output of six sub-committees of the Lords EU Select Committee as well as numerous other select committees, resulted in a measure that was very different from the one introduced to the Commons by former Brexit Secretary, David Davis, as a result of 192 amendments to the Bill and government defeats in 15 votes.

With Westminster’s huge focus on Brexit, the limited time to pursue a domestic agenda might be thought to have meant the Bar’s interests on this front would have suffered. In fact over the past year the issue of funding the justice system, and criminal justice in particular, has received significantly more attention at Westminster than in previous years, in both Houses, following sustained lobbying by the Bar Council and the Criminal Bar Association and aided by the distribution to every MP of a copy of The Secret Barrister’s book.

The concerns which the Bar had about the Advocates’ Graduated Fee Scheme (AGFS) instrument laid in February which came into effect on 1 April, were shared that month by the Lords Secondary Legislation Standing Committee which reported the matter to the House. The consultation in August on a proposed allocation of additional expenditure on AGFS followed a Commons debate in June on an Early Day Motion signed by 90 MPs, a Commons Justice Committee inquiry into criminal legal aid in July, a Commons ‘Estimates Day’ debate on the Ministry of Justice’s spending in the same month and a Westminster Hall debate in September on the future of legal aid initiated by the chair of the All Party Parliamentary Group on Legal Aid, Karen Buck.

The need to fund the justice system properly was reinforced for MPs and Peers during the course of Justice Week at meetings of the APPGs for the Rule of Law and Public Legal Education and the Lords Science and Technology Committee considering forensic science in the criminal justice system and it led to informed exchanges about justice funding in the Commons in the course of the debates on the Chancellor’s Budget in November. The fundamental importance of an independent, strong and diverse legal profession as a pillar of the justice system was impressed on the Justice Committee by the Lord Chief Justice in presenting his 2018 report to Parliament in November.

It was therefore reassuring to hear the Lord Chancellor announce at the Annual Bar and Young Bar Conference, having acknowledged the ‘enormously important’ role criminal defence advocates carry out in publicly funded work in the crown court, that the government would bring an additional £23m to funding the AGFS scheme, mostly targeted at cases conducted by junior advocates and that a proposed increase of 1% to all fees would be brought forward to come into effect alongside the planned introduction of the new scheme, on 31 December 2018, rather than from April 2019.

The government also recognises that there is scope to further improve the way criminal advocates are paid. To that end they intend to launch a broader review of criminal legal aid schemes early in the new year. This will take into account the Justice Committee’s reports on criminal legal aid and disclosure in criminal cases, and broader changes across the criminal justice system. The scale of this task, which will involve new data and evidence, should not be underestimated. Plainly the government and the legal professions will need to work together if this ambition is to lead to a sustainable outcome on the basis of which barristers and solicitors can plan for the future.

Against the backdrop of all the political and economic uncertainty created by Brexit, and the difficult funding challenges facing departments in the forthcoming spending review, the AGFS result, and what may develop in response to the Bar’s wider campaign for justice, gives some cause for hope in 2019.